United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE
Vivian Percoco brings this employment discrimination action
against her former employer, Defendant Lowe's Home
Centers, LLC. She raises claims for race and national origin
discrimination in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., and the Connecticut Fair Employment
Practices Act (“CFEPA”), Conn. Gen.Stat. §
46a-60 et seq.; claims for age discrimination in
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq.,
and CFEPA; and claims for interference and retaliation in
violation of the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601 et
seq. Defendant moves for summary judgment on
all claims. The Court grants the motion and enters judgment
in favor of Defendant.
following facts, which are undisputed unless otherwise noted,
are drawn from the record. Plaintiff is Hispanic, is of Puerto
Rican descent, and was over the age of forty at all relevant
times. ECF Nos. 1 (Compl.) at ¶ 16; 37 (Answer) at
¶ 16; see 42-9 (Pl. Depo.) at 129:16-21.
Plaintiff worked as the Human Resources Manager for
Defendant's Danbury store from 2006 until 2013. ECF Nos.
1 (Compl.) at ¶¶ 15, 19, 39; 37 (Answer) at
¶¶ 15, 19, 39; 42-10 (Jewell Depo.) at 12:15-19.
Her immediate supervisor in 2013 was Area Human Resources
Manager Svetlana Jewell née Baranova, who is neither
Hispanic, Puerto Rican, nor over the age of forty. ECF Nos. 1
(Compl.) at ¶ 21; 37 (Answer) at ¶ 21; 42-10
(Jewell Depo.) at 5:15- 20. Jewell's immediate supervisor
was Human Resources Director Luis Rivera, who is Hispanic, is
of Puerto Rican descent, and was over the age of forty in
2013. ECF No. 42-2 (Rivera Aff.) at ¶¶ 2-3, 5.
Members of the Human Resources Department, including
Plaintiff, are not trained to investigate complaints of
gender discrimination and harassment. ECF No. 42-10 (Jewell
Depo.) at 30:8-18, 35:3-9. Given the potential for legal
liability, Defendant's Employee Relation Department are
specifically trained to investigate these claims.
Id. at 35:10-18.
March 31, 2013, Plaintiff sustained face and chest injuries
from a car accident. ECF No. 42-9 (Pl. Depo.) at 13:2-20.
That night, she informed the night manager of Defendant's
Danbury store that the car accident prevented her from coming
to work the following week. Id. at 15:13-16:10. A
few days later, Plaintiff also informed Jewell, and Jewell
told Plaintiff “to take it easy and just keep in
contact with [Plaintiff's] coordinator.”
Id. at 16:11-25. Plaintiff used four paid sick days,
id. at 17:22-18:8; ECF No. 42-10 (Jewell Depo.) at
10:9-14, and never received nor requested any type of FMLA
documentation, ECF No. 42-9 (Pl. Depo.) at 18-21. Plaintiff
returned to work on Monday, April 8, 2013. Id. at
Friday evening before Plaintiff's return, Kayla Fleming,
a store employee, emailed Store Manager Angelo Resso and
Plaintiff. ECF No. 42-5 (Email). Fleming's email states,
in relevant part, that “[Manager Samir Feratovic] told
me on multiple occasions that because he is a man and we are
women that men are superior to women in every way therefore
he is above me.” Id. When Plaintiff returned
to work the following Monday, Resso informed Plaintiff that a
number of employees including Fleming had submitted written
statements concerning sexual harassment, but Resso did not
provide any specific details. ECF No. 42-9 (Pl. Depo.) at
19:4-20:2. Plaintiff read Fleming's email that Monday
afternoon, id. at 22:5-7, and the following day
Resso provided Plaintiff with the three written complaints,
id. at 20:10-12. The complainants alleged that
Feratovic had made statements that he does not listen to
women, that woman are beneath him, and that men are superior
to women. ECF Nos. 6-8 (Written Statements). Lisa LeBreque, a
store employee, also complained to Plaintiff, but the parties
dispute whether this occurred on Monday or Tuesday. ECF No.
42-9 (Pl. Depo.) at 25:9-13.
Tuesday, April 9, 2013, Plaintiff spoke with Feratovic, ECF
No. 42-9 (Pl. Depo.) at 34:2-5, but the parties dispute
whether Plaintiff took a written statement from Feratovic,
compare Id. at 105:9-15, with ECF No. 42-10
(Jewell Depo.) at 81:2- 6 (“Percoco had explicitly
stated . . . that she did not collect a statement from
[Feratovic].”). Feratovic admitted that the complaints
were accurate. ECF No. 42-9 (Pl. Depo.) at 35:5-10. He
further stated that he should not joke that way because women
are “mostly emotional and sensitive.”
Id. at 44:6-7. Plaintiff believed that Feratovic was
just “joking around.” Id. at 45:12-15.
Plaintiff also thought that she “stopped the
behavior” by telling Feratovic that he
“couldn't really be friendly with his subordinates,
” id. at 35:17-22, 112:18-20, and she blamed
the incident on Feratovic's national origin, id.
at 31:25-32:1 (“[I]t's his personality. I'm
just saying that's German.”). But on April 13, one
of the complainants informed Plaintiff that Feratovic
retaliated against her. ECF No. 42-9 (Pl. Depo.) at
informed Jewell of the complaints of gender discrimination a
week after Plaintiff first learned of them. ECF No. 42-9 (Pl.
Depo.) at 105:20-22. On the following day, Jewell told Rivera
because members of the Employee Relation Department, not the
Human Resources Department, are specifically trained to and
charged with investigating claims of gender discrimination
and harassment. ECF No. 42-10 (Jewell Depo.) at 30:8-18,
35:3-9; 35:10-18. In light of the problems caused by
Plaintiff's unsupervised investigation, Rivera ordered
Jewell to look into the issue, and Jewell learned that one of
the complainants intended to call Defendant's hotline
because the claims of discrimination went unabated.
Id. at 37:21-38:7.
also tasked Jewell with ascertaining why Plaintiff waited to
immediately report the incident after returning to work, as
Plaintiff was required to do, and Plaintiff said she believed
that she had addressed the complaints herself. ECF No. 42-10
(Jewell Depo.) at 31:14-32:25. Rivera then decided to
terminate Plaintiff's employment for failing to
immediately report the incident, and Jewell agreed.
Id. at 74:22-75:8. On April 25, 2013, Jewell
informed Plaintiff that she was being fired because she
failed to promptly notify Jewell of the complaints of gender
discrimination after Plaintiff learned of those complaints
when she returned to work. ECF No. 42-9 (Pl. Depo.) at
117:3-17. Defendant replaced Plaintiff with a female employee
who was over the age of forty, but the record does not
demonstrate whether the replacement was younger, Hispanic, or
Puerto Rican. ECF No. 42-10 (Jewell Depo.) at 44:7-45:10.
Defendant concedes that the replacement was neither Hispanic
nor Puerto Rican. ECF No. 42-1 (Mem.) at 11.
believes that the failure to discharge Resso shows race,
national origin, and age discrimination, as well as FMLA
retaliation. ECF No. 42-9 (Pl. Deop.) at 131:1-5. Resso is
white and younger than Plaintiff, id. at 128:15-18,
but the record does not indicate whether Resso is Puerto
Rican. Resso was not in the Human Resources Department, is
not a human resources professional, and has no reporting
relationship to Jewell and Rivera. ECF No. 42-10 (Jewell
Depo.) at 16:2- 17:12. Resso received one complaint of
discrimination on Friday evening, and he reported the
incident the following Monday. ECF No. 42-9 (Pl. Depo.) at
19:14-15, 117:22-24. According to Jewell, Resso was not
disciplined because a less-than-five-day delay in reporting
was not inappropriate given that Plaintiff, his supervisor,
would be returning to work on the following Monday. ECF No.
42-10 (Jewell Depo.) at 14:16-15:1, 44:2-3.
believes that the failure to discharge Michael Velez,
Defendant's Derby Store Human Resources Manager,
illustrates age discrimination as well as FMLA retaliation.
ECF No. 42-9 (Pl. Depo.) at 128:22-24. Velez is both Hispanic
and of Puerto Rican descent but younger than forty. ECF No.
42-11 (Velez Depo.) at 23:14-24. In May 2013, Velez received
a complaint that a male store manager used the
“f” word when scolding a male employee.
Id. at 28:18-19, 57:11-15; ECF No. 42-10 (Jewell
Depo.) at 56:8-13. The complaint was not based on any claim
of discrimination. ECF No. 42-10 (Jewell Depo.) at 73:1-10.
Velez informed Jewell of the alleged incident two or three
days later. ECF No. 42-11 (Velez Depo.) at 63:17- 18. Velez
received a final warning, the last disciplinary step before
being discharged, for failing to immediately report the
incident. ECF No. 42-10 (Jewell Depo.) at 72:4-7.
also believes that she was the victim of age discrimination
because another unidentified store manager was allegedly
fired six months before Plaintiff was terminated. ECF No.
42-9 (Pl. Depo.) at 141:15-142:25. But other than vague
rumor, the record contains no evidence either delineating or
substantiating this allegation. Plaintiff further testified
that her claim for age discrimination was based on the fact
that she and another employee over the age of forty generally
felt uncomfortable around Jewell and that Jewell treated them
with condescension. Id. at 126:10-15. Plaintiff
cannot remember any specifics as to why she felt
uncomfortable around Jewell, and Plaintiff does not recall
Jewell ever making any age-related comments to her or any
other employee. Id. at 127:15-19, 128:9-11.
Standard of Review
judgment should be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the burden of
proving that no genuine factual disputes exist. See
Vivenzio v. City of Syracuse,611 F.3d 98, 106 (2d Cir.
2010). “In determining whether that burden has been
met, the court is required to resolve all ambiguities and
credit all factual inferences that could be drawn in favor of
the party against whom summary judgment is sought.”
Id. (citing Anderson v. Liberty Lobby,
Inc.,477 U.S. 242, 255 (1986); Matsushita Electric
Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587
(1986)). “If there is any evidence in the record that
could reasonably support a jury's ...